Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
April 22, 2005
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2005-02
Marc E. Elias, Esq.
Brian G. Svoboda, Esq.
Perkins Coie LLP
607 14th Street, N.W.
Washington, D.C. 20005-2011
Dear Messrs. Elias and Svoboda:
We are responding to your advisory opinion request on behalf
of United States Senator Jon Corzine and Corzine for Governor,
Inc., concerning the application of the Federal Election Campaign
Act of 1971, as amended (the "Act"), and Commission regulations
to fundraising activities by Senator Corzine in connection with
his current candidacy for Governor of New Jersey and also for the
benefit of other non-Federal candidates and committees in New
Jersey.
Background
The facts of this request are presented in your letters
dated February 11 and 23, 2005, as well as in reports on file
with the Commission and publicly available materials.
Senator Corzine is a United States Senator from New Jersey,
elected in 2000. On December 2, 2004, he announced his intention
to run for Governor of New Jersey in the 2005 primary election.
Corzine for Governor, Inc., is his State campaign committee. In
early May 2001, Senator Corzine became a candidate, as defined in
2 U.S.C. 431(2), for re-election to the U.S. Senate in 2006. You
indicate that, after announcing his gubernatorial candidacy,
Senator Corzine is no longer seeking re-election to Federal
office.
The primary election for New Jersey governor and other State
and local offices will take place on June 7, 2005, and the
general election for those offices will take place on November 8,
2005. Neither of those elections will involve either the
nomination or election of any candidates for Federal office;
unlike most other States, New Jersey elects candidates to
statewide office, the State legislature, and other State and
local offices during odd-numbered years.
Senator Corzine "would like to be able to act like any other
gubernatorial candidate, notwithstanding his status as a United
States Senator." As a gubernatorial candidate, he wishes to
raise funds, both by himself and through his agents, for Corzine
for Governor, for other New Jersey State and local candidates,
for New Jersey State political action committees ("PACs"), and
for the non-Federal accounts of State and local party committees
- all within the limits prescribed by New Jersey State law. You
indicate that Senator Corzine and his agents "would like to
participate in the spending activities undertaken by New Jersey
State and local party committees to the maximum extent permitted
by New Jersey State law."
Briefly stated, 2 U.S.C. 441i(e)(1)(B) and 11 CFR 300.62
provide that a Federal candidate or officeholder may raise and
spend funds in connection with a non-Federal election only in
amounts and from sources that are consistent with State law and
that do not exceed the Act's limitations or come from sources
prohibited by the Act. An exception to the application of the
Act's limitations and prohibitions, at 2 U.S.C. 441i(e)(2) and 11
CFR 300.63, applies when the Federal candidate or officeholder
raises funds "solely in connection" with his own State election
and the "solicitation, receipt, or spending" refers only to
himself or to his non-Federal opponent. You note that the source
restrictions and donation limits of New Jersey law differ
significantly from those of Federal law. Significantly, New
Jersey law permits donations by labor organizations and most
types of corporations, and New Jersey donation limits differ from
the Act's limits at 2 U.S.C. 441a(a).1
Although the proposed solicitations to be made by Senator
Corzine and his agents would not always be for donations payable
to his gubernatorial campaign committee, you state that they
would be "in connection with" his gubernatorial campaign and that
none of the activities would be in connection with any Federal
election or refer to any Federal candidate. You indicate that
State and local candidates often look to the "top of the ticket"
for support, and that the extent of the cooperation and help the
candidates give to Senator Corzine's gubernatorial bid may depend
upon the extent he is able to offer such support. You also
indicate that the success of efforts by State PACs and party
committees on behalf of the November 2005 Democratic ticket may
depend on the support given by the "top of the ticket." You
state that all of the activity described in your request will be
"exclusively for the purpose of influencing" Senator Corzine's
2005 gubernatorial campaign.
In your threshold question, you ask the Commission to
confirm that the Act and Commission regulations allow Senator
Corzine and his agents to raise funds within New Jersey limits,
but not subject to the Federal restrictions, for the above-
described entities.. If the Commission concludes otherwise,
i.e., that Senator Corzine and his agents would, through
2 U.S.C. 441i(e)(1)(B), be subject to the Act's limitations and
prohibitions, you seek responses to a number of questions set out
below.
Threshold Question Presented
May Senator Corzine and his agents raise funds that comply
with State law, but not with the limits and prohibitions of the
Act, for the campaigns of other New Jersey State and local
candidates, State PACs, and the non-Federal accounts of State and
local party committees, so long as the Senator and his agents (1)
comply with State law; (2) solicit, receive, and spend funds
solely in connection with the June and November 2005 elections;
and (3) refer to Senator Corzine only in his capacity as a
gubernatorial candidate and do not refer to any other Federal
candidate?
Response to the Threshold Question
No. Senator Corzine and his agents may raise funds for the
campaigns of the other New Jersey State and local candidates,
State PACs, and the non-Federal accounts of State and local party
committees only in amounts that are not in excess of 2 U.S.C.
441a(a) and from sources that are permissible under the
limitations and prohibitions of the Act.
As amended by the Bipartisan Campaign Reform Act of 2002
("BCRA"), Public Law 107-155, 116 Stat. 61 (2002), the Act
regulates certain actions of Federal candidates and
officeholders, their agents, and entities directly or indirectly
established, financed, maintained or controlled by, or acting on
behalf, of Federal candidates or officeholders when they raise or
spend funds in connection with either Federal or non-Federal
elections. 2 U.S.C. 441i(e);
11 CFR 300.60 through 300.65. In pertinent part, BCRA, and the
Commission regulations implementing BCRA prohibit those persons
from soliciting, receiving, directing, transferring, spending, or
disbursing funds in connection with any non-Federal election
unless the funds do not exceed the amounts permitted with respect
to contributions to candidates and political committees under 2
U.S.C. 441a(a)(1), (2), and (3) and do not come from sources
prohibited under the Act. 2 U.S.C. 441i(e)(1)(B); 11 CFR 300.62;
see also 2 U.S.C. 441a, 441b, 441c, 441e, and 441f. Commission
regulations also require such funds to be in amounts and from
sources that comply with State law. 11 CFR 300.62.
The aim of these provisions is to limit the ability of
Federal candidates and officeholders to raise or spend soft money
in connection with State and local elections, but not to
eliminate the activity entirely. See McConnell v. Federal
Election Commission, 540 U.S. 93, 182.2 Unlike other sections of
BCRA specifically dependent upon the appearance of a Federal
candidate on the ballot (see, e.g., 2 U.S.C. 431(20)(A)(i) and
(ii)), the limitations and prohibitions in 2 U.S.C 441i(e)(1)(B)
apply to a Federal officeholder at any time, regardless of
whether any Federal candidate appears on the ballot for the
relevant election.
In 2 U.S.C. 441i(e)(2), BCRA provides a limited exception
for the situation in which a Federal candidate or officeholder is
seeking election to a State office. Specifically, section
441i(e)(2) provides that the restrictions of 2 U.S.C.
441i(e)(1)(B) do not apply to the solicitation, receipt, or
spending of funds by a Federal officeholder who is also a
candidate for a State or local office solely in connection with
such election, if the solicitation, receipt, or spending of funds
is permitted under State law and refers only to the Federal
officeholder who is also a State or local candidate, and/or to
his opponents. See 11 CFR 300.63; see also Explanation and
Justification for Prohibited and Excessive Contributions; Non-
Federal Funds or Soft Money; Final Rule ("Soft Money Final
Rules"), 67 FR 49064, 49107 (July 29, 2002).3 Thus, any
solicitation, receipt, or spending of funds by a Federal
officeholder that refers to State or local candidates running for
entirely different offices does not come within the exception.
Therefore, the Commission concludes that, as a Federal
officeholder, Senator Corzine, his agents, and Corzine for
Governor may solicit donations to other State and local
candidates only in accordance with the limitations and
prohibitions of the Act, as well as with State law ("Federally
permissible funds"). 2 U.S.C. 441i(e)(1)(B) and 11 CFR 300.62.4
This includes solicitations by Senator Corzine for donations to
State PACs or party committees, regardless of whether the
solicitations refer to other non-Federal candidates, because
solicitations for such entities will be, as you indicate, for the
purpose of raising funds to be used "in efforts to support the
November 8, 2005 Democratic ticket," which includes other non-
Federal candidates.
Additional Questions
You ask several additional questions in the event the
Commission concludes that, pursuant to 2 U.S.C. 441i(e)(1)(B),
there are circumstances under which Senator Corzine and his
agents are limited to raising and spending funds that comply with
the Act's limitations and prohibitions by virtue of Senator
Corzine's status as a Federal officeholder.
1. New Jersey law permits two State or local candidates to
conduct their activities together through a "joint candidates
committee." May Senator Corzine raise only up to $2,100 per
election from an individual donor for such a joint candidates
committee (in which Senator Corzine is not involved), or may
he raise up to $4,200 per election because there are two
candidates?
Pursuant to 2 U.S.C. 441i(e)(1)(B) and 11 CFR 300.62,
Senator Corzine and his agents may raise up to $2,100 per
election5 from an individual donor for a candidate for State or
local office. See 2 U.S.C. 441a(a)(1)(A); Advisory Opinion 2003-
03. Under New Jersey law, a "joint candidates committee" ("JCC")
is a committee that is established by two or more candidates
running "in the same election [but for different offices] in a
legislative district, county, municipality, or school district .
. . ." NJSA 19.44A-3(r). A candidate may establish his own
single candidate committee while also co-establishing a JCC.
Donations to a JCC are attributable on an equally divided basis
among the candidates, and the amounts attributable to a candidate
must be aggregated with the amounts received by his single
candidate committee for the purpose of determining whether the
donor has exceeded the New Jersey limits on donations to
candidates. See NJAC 19:25-11.4 and 11.5.6
Using your example of a JCC for two candidates, the
Commission views such a committee as equivalent to an additional
authorized committee for each of the two candidates.
Accordingly, Senator Corzine may raise up to $4,200 per election
from an individual donor for the JCC, if he raises no other funds
for the participating candidates' campaigns or single candidate
committees from that individual. If Senator Corzine raises funds
from an individual donor for either of the two candidates, other
than funds raised for the JCC, such donations must be taken into
account when determining how much Senator Corzine can raise for
the JCC to ensure that he does not raise more than $2,100 per
election in the aggregate from the individual for either
candidate.
2. Questions regarding raising funds for State and local party
committee non-Federal accounts.
You ask a series of questions pertaining to the solicitation
by Senator Corzine and his agents for the non-Federal accounts of
the New Jersey State and local Democratic party committees. In
accordance with 2 U.S.C. 441i(e)(1)(B) and 11 CFR 300.62, the
responses to these questions implicate the limits on
contributions to party committees in 2 U.S.C. 441a(a), the
affiliation of State and local party committees, and the effect
of previous contributions by an individual to a party committee's
Federal account.
We address your specific questions below. As a preliminary
matter, however, we note that the Act, as interpreted by
Commission regulations, provides a complete exemption from the
restrictions at 2 U.S.C. 441i(e)(1)(B) and 11 CFR 300.62 under
one set of circumstances. Specifically, 2 U.S.C. 441i(e)(3)
states that "[n]otwithstanding [2 U.S.C. 441i(e)(1)], a candidate
or an individual holding Federal office may attend, speak, or be
a featured guest at a fundraising event for a State, district, or
local committee of a political party." Under 11 CFR 300.64(b),
candidates and Federal officeholders may speak at such events
"without restriction or regulation." Therefore, Senator Corzine
may appear at a fundraising event for a State or local party
committee and solicit donations at that event exceeding the
amount limitations and without regard to the source prohibitions
of the Act. See Soft Money Final Rules, 67 FR at 49108
(describing the manner in which the name of the Federal candidate
or officeholder may appear in pre-event publicity and explaining
the circumstances where solicitation restrictions would attach,
notwithstanding the exception described above).7
a. With respect to donations to a Federally registered party
committee, must the prospective donor's previous contributions to
the committee's Federal account be considered by Senator Corzine
in determining the amount he may solicit for the committee's non-
Federal account?
No. The Commission concludes that Senator Corzine does not
need to consider a prospective donor's previous contributions to
a Federally registered party committee's Federal account, or any
amounts Senator Corzine may have previously solicited from the
donor for that account, in determining the amount he may now
solicit from that donor for the party committee's non-Federal
account. This conclusion is consistent with an explanation of 2
U.S.C. 441i(e)(1)(B) by a principal sponsor of BCRA, stating that
"a Federal candidate or officeholder may solicit up to [the
applicable annual limit] for a State party's non-Federal account,
even if that same individual or PAC has already given a similar
amount to the State party's Federal, or hard money, account."
148 Cong. Rec. S2140 (daily ed. March 20, 2002) (statement of
Sen. McCain). Similarly, the Supreme Court, in McConnell v. FEC,
supra, stated that 2 U.S.C. 441i(e)(1)(B), in effect, "doubles"
the limit on what an individual can contribute at the behest of a
Federal candidate or officeholder, "while restricting the use of
the additional funds to activities not related to federal
elections." 540 U.S. at 181.
b. May Senator Corzine and his agents solicit up to $10,000 per
individual donor for the non-Federal account of the State, and
each local, party committee? Does the solicitation limit apply
to each party committee separately, or to all of them
collectively? Does a different limit apply if Senator Corzine
solicits Federal PACs for donations to those party committees?
The Act and Commission regulations provide that an
individual may contribute no more than $10,000 per calendar year
to a political committee established and maintained by a State
committee of a political party. 2 U.S.C. 441a(a)(1)(D); 11 CFR
110.1(c)(5). A $5,000 per calendar year limit on contributions
by an individual to "any other political committee" applies to
contributions to committees not established and maintained by a
State party committee. 2 U.S.C. 441a(a)(1)(C); 11 CFR 110.1(d).
Commission regulations at 11 CFR 110.3(b)(3) establish a
rebuttable presumption that a State party committee and the local
party committees in that State are affiliated with each other and
hence share one limit on contributions they receive. See 2
U.S.C. 441a(a)(5); see also
11 CFR 100.14.8 Hence, the amount that Senator Corzine and his
agents may solicit from an individual donor for the non-Federal
accounts of the State party committee and all affiliated local
party committees is subject to a shared donation limit of $10,000
per calendar year. If a local party committee is not affiliated
with the State committee or other local committees, Senator
Corzine may solicit up to $5,000 per calendar year from an
individual for that committee's non-Federal account without
regard to the amounts he solicits for the other party committees.
The Commission concludes that the same principles as to
aggregation and non-aggregation for donations by individuals to
party committees' non-Federal accounts apply to donations by
Federal PACs to those accounts at the request of Senator Corzine
or his agent. Hence, the donations must comply with 11 CFR
300.62 with respect to the amounts and the sources of the funds
used for the donations. The Commission also notes that the
amount that Senator Corzine may solicit will depend upon whether
the Federal PAC is a multicandidate committee. Although a non-
multicandidate PAC may contribute $10,000 per year, in aggregate,
to any committees established and maintained by a State party
committee, the contribution limit on yearly contributions by a
multicandidate PAC to the State party committee is only $5,000.
See 2 U.S.C. 441a(a)(1)(C) and (D), and (2)(C).
c. Would a separate limit apply to solicitations for
unregistered local party committees?
Yes. Normally, all contributions received by more than one
affiliated committee, regardless of whether they qualify as
political committees (and are therefore required to register with
the Commission), shall be considered to be received by one
committee and must be aggregated for the purpose of determining
whether such contributions comply with the Act's limits. See 11
CFR 110.3(a)(1). In applying 2 U.S.C. 441a(a)(5) and 11 CFR
110.3(b) to State and local party committees, however, the
Commission has concluded that a local party organization must be
a political committee in order for its received contributions to
be subject to such aggregation, even if such a local committee or
organization is not "independent" of the other State or local
party committees. See Advisory Opinions 1999-4 and 1978-9.
Hence, Senator Corzine and his agents may solicit up to $5,000
from an individual donor for an unregistered local party
committee's non-Federal account, without regard to the amount he
solicits from that donor for any other New Jersey State or local
party committee, so long as the unregistered committee does not
qualify as a political committee under 2 U.S.C. 431(4)(C) and 11
CFR 100.5(c).
3. Questions regarding the involvement of Senator Corzine in
certain other non-Federal activities.
You ask several questions about the application of section
441i(e) to activities that may benefit Senator Corzine's
gubernatorial campaign but that do not necessarily involve the
solicitation of funds by him or his agents for his campaign or
for other committees.
a. May Senator Corzine and his agents help State and local
candidates, State PACs, and State and local party committees plan
the structure of their fundraising and spending activities? For
example, may Senator Corzine and his agent convey their views
about the types of fundraising events non-Federal candidates and
committees might schedule and when such events should occur; how
these non-Federal candidates and committees might spend funds
effectively in support of the entire Democratic ticket; and how
such candidates and committees might effectively coordinate their
activities with the Corzine campaign, subject to New Jersey State
law.
Yes, Senator Corzine may engage in these activities. The
Supreme Court's decision in McConnell sheds light on this
question. In addressing the conduct of national party officers
under the national party soft money ban at 2 U.S.C. 441i(a), the
Supreme Court stated, "Nothing on the face of [section 441i(a)]
prohibits national party officers, whether acting in their
official or individual capacities, from sitting down with state
and local party committees or candidates to plan and advise how
to raise and spend soft money. As long as the national party
officer does not personally spend, receive, direct, or solicit
soft money, [section 441i(a)] permits a wide range of joint
planning and electioneering activity." 540 U.S. at 160.
Similarly, Senator Corzine and his agents may consult with non-
Federal candidates and committees to help them plan how to raise
and spend non-Federal funds, so long as Senator Corzine and his
agents do not solicit, receive, direct, transfer, spend, or
disburse funds proscribed by 2 U.S.C. 441i(e)(1)(B). See
McConnell v. FEC, 540 U.S. 93, 160 (citing to Brief for
Intervenor-Defendants Sen. John McCain et al. in No. 02-1674 et
al., p. 22 which stated that "BCRA leaves parties and candidates
free to coordinate campaign plans and activities, political
messages, and fund-raising goals with one another").9 By
themselves, such consultations do not constitute spending by
Corzine for Governor or by any non-Federal committees.
b. May Senator Corzine and his agents recommend individuals for
employment to candidates, PACs, and parties if those individuals'
duties would involve soliciting, receiving, directing,
transferring, spending, or disbursing non-Federal funds?
Yes. Neither the Act nor Commission regulations prohibit
such recommendations. So long as the recommended individual is
not acting as an agent for Senator Corzine or the Corzine
gubernatorial campaign, the individual may solicit, receive,
transfer, spend, or disburse non-Federal funds for the other
candidates or committees, without being subject to the
restrictions contained in 2 U.S.C. 441i(e)(1)(B) and 11 CFR
300.62. See 11 CFR 300.2(b)(3) and Advisory Opinion 2003-10; see
also Soft Money Final Rules, 67 FR at 49083 (describing the
ability of individuals to wear "multiple hats").
c. What specific conduct by Senator Corzine or his agents would
result in "spending" or "disbursing" funds under 11 CFR 300.62?
In particular, are there limits on what Senator Corzine and his
agents can say to State and local candidates, State PACs, and
State and local party committees regarding their spending plans?
In the absence of further information regarding specific
conduct by Senator Corzine or his agents or statements by them
regarding the spending plans of other specific candidates, we
cannot provide an exhaustive answer to your question. See 11 CFR
112.1(b). However, McConnell has made clear as a matter of law
that BCRA does not preclude parties and candidates from
discussing campaign strategy and fundraising goals with one
another. Therefore, if Senator Corzine or his agents discuss the
spending plans of other specific candidates or committees, such
discussions would not, in and of themselves, constitute
"spending" or "disbursing" funds. For example, if Senator
Corzine or his agents were to discuss with the State and local
party committees plans to spend $50,000 on get-out-the-vote
("GOTV") efforts, such discussions would not constitute spending
or disbursing funds by Senator Corzine.
4. Are there circumstances under which individuals might be
agents of Corzine for Governor, Inc. and yet not of Senator
Corzine - and thus not subject to the provisions of section
441i(e)? Does an individual automatically become an "agent" of
Senator Corzine simply by working for his gubernatorial
campaign, or even by volunteering for it?
Under 11 CFR 300.2(b)(3), an "agent" of a Federal
officeholder is any person who has actual authority, either
express or implied, to solicit, receive, direct, transfer, or
spend funds in connection with any election on behalf of the
Federal officeholder.10
The restrictions contained in 2 U.S.C. 441i(e)(1), as well
as the exception in 2 U.S.C. 441i(e)(2), apply to the Federal
candidate or Federal officeholder, as well as agents acting on
behalf of the Federal candidate or officeholder and entities
directly or indirectly established, financed, maintained, or
controlled by, or acting on behalf of, the Federal candidate or
officeholder. 11 CFR 300.60 through 300.63; see also 2 U.S.C.
441i(e)(1). When an individual is acting as an "agent" for
Corzine for Governor, he is acting on behalf of an entity
directly or indirectly established, financed, maintained, or
controlled by Senator Corzine for the purposes of the
gubernatorial campaign, and hence the individual's activities are
governed by 2 U.S.C. 441i(e)(1) and (2). The individual is thus
Senator Corzine's agent as well.
However, the individual may be an agent of Corzine for
Governor for a number of purposes related to raising and spending
funds and yet perform other acts that are not on behalf of
Corzine for Governor. For example, a fundraiser, whether
professional or volunteer, may be raising funds for more than one
candidate or committee. In explaining the regulation defining
"agent" at 11 CFR 300.2(b), the Commission made clear that a
principal may only be held liable under BCRA for the actions of
an agent when the agent is acting on behalf of the principal.
Soft Money Final Rules, 67 FR at 49083. "[I]t is not enough that
there is some relationship or contact between the principal and
agent; rather, the agent must be acting on behalf of the
principal to create potential liability for the principal. This
additional requirement ensures that liability will not attach due
solely to the agency relationship, but only to the agent's
performance of prohibited acts for the principal." Id; see also
Advisory Opinions 2003-36, 2003-10, and 2003-03.
Whether a specific individual is an agent of Senator Corzine
would depend upon a number of factors, including the individual's
position with the gubernatorial campaign, the duties he performs,
and the scope of the authority that the individual has been
granted - either expressly or impliedly. Whether that person is
acting on behalf of Senator Corzine in a particular activity, and
thus is subject in that activity to the provisions of section
441i(e)(1) and (2), is also necessarily a fact-based
determination that will be based on what the Senator and that
individual say and do. As the Supreme Court has recognized, an
individual may be subject to BCRA's fundraising restrictions in
some contexts and not in others.11
This response constitutes an advisory opinion concerning the
application of the Act and Commission regulations to the specific
transaction or activity set forth in your request. See
2 U.S.C. 437f. The Commission emphasizes that, if there is a
change in any of the facts or assumptions presented, and such
facts or assumptions are material to a conclusion presented in
this advisory opinion, then the requestor may not rely on that
conclusion as support for its proposed activity.
Sincerely,
(signed)
Scott E. Thomas
Chairman
Enclosures (AOs 2003-36, 2003-10, 2003-03, 1999-4, 1997-18, and
1978-9)
DISSENTING OPINION OF COMMISSIONER DAVID MASON
RE: ADVISORY OPINION 2005-02
I support all of the conclusions in Advisory Opinion 2005-02
except the implicit conclusion that the annual limit for
contributions to local political party committees affiliated with
state political party committees is $10,000. See Advisory
Opinion 2005-02 at 9-10. As is explained below, the annual limit
is $5,000 for contributions to all local political party
committees.
The Federal Election Campaign Act establishes contribution
limits and provides:
(a) Dollar limits on contributions
(1) Except as provided in subsection (i) of this
section and section 441a-1 of this title, no person
shall make contributions--
(A) to any candidate and his authorized political
committees with respect to any election for
Federal office which, in the aggregate, exceed
$2,000;
(B) to the political committees established and
maintained by a national political party, which
are not the authorized political committees of any
candidate, in any calendar year which, in the
aggregate, exceed $25,000;
(C) to any other political committee (other than a
committee described in subparagraph (D)) in any
calendar year which, in the aggregate, exceed
$5,000; or
(D) to a political committee established and
maintained by a State committee of a political
party in any calendar year which, in the
aggregate, exceed $10,000.
2 U.S.C. 441a(a)(1) (2002); see also 11 C.F.R. 110.1(a)-(d)
(2003). These amounts are indexed for inflation. See 2 U.S.C.
441a(c) (2002); 11 C.F.R. 110.1(b)-(d).
Both the statute and the regulations treat state party
committees and local party committees differently. Different
limits apply to contributions to local committees than apply to
state committees:
ú After discussing limits on contributions to candidates and
national-party committees, see 2 U.S.C. 441a(a)(1)(A), (B), the
statute establishes a $10,000 annual limit for contributions to
political committees established and maintained by a state
committee. See id. (D). Similarly, the regulations provide that
"no person shall make contributions to a political committee
established and maintained by a State committee of a political
party in any calendar year that, in the aggregate, exceed
$10,000." 11 C.F.R. 110.1(c)(5).
ú The statute separately establishes a $5,000 annual limit for
contributions to any other political committee. See 2 U.S.C.
441a(a)(1)(C). Similarly, the regulations provide that "[n]o
person shall make contributions to any other political committee
in any calendar year which, in the aggregate, exceed $5,000." 11
C.F.R. 110.1(d). The phrase "any other political committee" in
2 U.S.C. 441a(a)(1)(C) and 11 C.F.R. 110.1(d) applies to all
local committees of political parties.
Because the statute includes a definition of state party
committee (2 U.S.C. 431(15), and in various places
separately addresses district and local party committees,
441a(a)(1)(D) ($10,000 limit for state party committees)
cannot, on its face, be read to apply to district or local
party committees. Indeed, prior to passage of BCRA, state
party committees were subject to the 441a(a)(1)(C) limit
($5,000) applied to "any other political committee."
New 441a(c)(1)(D) explicitly addresses "a State
committee of a political party." In contrast, other BCRA
provisions addressed "State, district, and local committees"
(see 441i(b)), yet others address "State or national"
committees (see 441a(i)(1)(C)(iii)(III)), others national
committees only (441i(a)) and still others "national, State,
district or local" committees (441i(d)).
The drafters of BCRA showed an acute awareness of the
distinctions among national, state, and local party
committees, addressing different restrictions and permissions
to each category, separately or in selective combination with
other categories. Thus, in the context of BCRA, we cannot
interpret a provision addressed to State committees to also
(sub silentio) apply to district or local committees.
Commentors and my colleagues point to the transfer and
aggregation provisions (441a(a)(4) and (5)) as effectively
collapsing the finances of state committees with affiliated
local committees. However, 441a(a)(4) permits unlimited
transfers among national, state, district, or local committees
of the same political party despite the substantially
different contribution limits for national and state
committees. Thus, this provision cannot be read as having the
effect of applying the limit for State committees to any other
types of committee. Section 441a(a)(5) and our implementing
regulations at 11 C.F.R. 110.3(b) establish the general rule
that contributions made or received by affiliated political
committees are "considered to have been made by a single
political committee," with an exception allowing separate
limits for national and state committees. This provision also
has no bearing on whether different limits apply for
contributions to state versus local committees.
Because the annual limit on contributions to local political-
party committees is $5,000, it is incorrect for the Commission to
conclude implicitly that a $10,000 annual contribution limit
applies to such committees.
Except for this point, I agree with Advisory Opinion 2005-
02.
______4/21/05_________________
________________(signed)___________________
Date David M. Mason,
Commissioner
_______________________________
1 For example, under New Jersey law, gubernatorial candidates
may receive up to $3,000 per election from each lawful source.
Other non-Federal candidates may receive $2,600 per election from
individuals, corporations, and labor organizations, $8,200 from a
State PAC, and unlimited amounts from State party and from county
party committees (for candidates within the county).
Individuals, corporations, and labor organizations may donate up
to $7,200 per calendar year to State PACs, and up to $25,000 and
$37,000 per calendar year to the non-Federal accounts of a State
party committee and county party committee respectively. See New
Jersey Statutes Annotated ("NJSA"), 19.44A-1, et. seq.; New
Jersey Administrative Code ("NJAC"), 19:25-11.2, 15.6, and 16.6.
2 In McConnell, the Supreme Court upheld 2 U.S.C. 441i(e),
stating:
Large soft-money donations at a candidate's or
officeholder's behest give rise to all of the same
corruption concerns posed by contributions made
directly to the candidate or officeholder. Though the
candidate may not ultimately control how the funds are
spent, the value of the donation to the candidate or
officeholder is evident from the fact of the
solicitation itself.
540 U.S. at 182.
3 Neither 2 U.S.C. 441i(e)(2) nor 11 CFR 300.63 contains an
express allowance for fundraising or spending by an
officeholder's agents. The Commission concludes that, in view of
the kinds of activities that all campaigns normally engage in,
the exception described in 2 U.S.C. 441i(e)(2) and 11 CFR 300.63
applies to all individuals described in 2 U.S.C. 441i(e)(1) and
11 CFR 300.60, and hence applies to the activities of agents and
to entities established, financed, maintained, or controlled by,
or acting on behalf of, the Federal officeholder.
4 Federally permissible funds are funds that could have been
deposited in a Federal account of a political committee. Thus,
in terms of solicitations for candidates, they are donations from
individuals in amounts up to $2,100 per election. In terms of
solicitations for State PACs, individuals may donate up to $5,000
per calendar year.
5 Similar to the Act, a primary election and a general election
are separate elections under New Jersey law. See NJAC 19:25-1.7.
6 Thus, under "equal attribution," the limit for donations to
one of the candidates in a JCC committee can compel a donor to
reduce his donation to the JCC, and the donation cannot be re-
apportioned to another candidate whose receipt limit would not be
exceeded.
7 The Commission notes that, in response to Shays v. FEC, 337 F.
Supp. 2d 28 (D.D.C. 2004), appeal filed, No. 04-5352 (D.C. Cir.
Sept. 28, 2004), 11 CFR 300.64(b) is the subject of an ongoing
rulemaking. See Candidate Solicitation at State, District, and
Local Party Fundraising Events, Notice of Proposed Rulemaking, 70
FR 9013 (February 24, 2005). The Commission's current regulation
remains in full force and effect pending the outcome of this
rulemaking proceeding.
8 This presumption may be rebutted if the party unit in question
has not received funds from any other political committee
established, financed, maintained or controlled by any party unit
and there is no cooperation, consultation or concert between the
party unit and any other political party committee or unit
regarding the making of contributions. 11 CFR 110.3(b)(3)(i) and
(ii). Even if the presumption is rebutted, these committees may
be affiliated under the affiliation factors set out in 11 CFR
110.3(a). See Advisory Opinions 1997-18, n.2, and 1978-9.
9 Commission regulations state that to "solicit" means "to ask
that another person make a contribution, donation, transfer of
funds, or otherwise provide anything of value," whether done so
directly or through a conduit or intermediary. 11 CFR 300.2(m).
Similarly, to "direct" means "to ask a person who has expressed
an intent to make a contribution, donation, or transfer of funds,
or to provide anything of value, to make that contribution,
donation, or transfer of funds, or to provide that thing of value
. . . ." 11 CFR 300.2(n). See also McConnell v. Federal
Election Commission, 540 U.S. at 160. The Commission's
definitions of "solicit" and "direct" are the subject of ongoing
litigation in Shays v. FEC, supra, and those definitions are
being addressed in the course of the Commission's appeal of the
district court's decision in that case. The Commission's current
regulations defining "solicit" and "direct" remain in full force
and effect pending the outcome of the appeal.
10 The Commission's regulations defining "agent" are the subject
of an ongoing rulemaking. See Definition of "Agent" for BCRA
Regulations on Non-Federal Funds or Soft Money and Coordinated
and Independent Expenditures, Notice of Proposed Rulemaking, 70
FR 5382 (February 2, 2005). The Commission's current regulations
defining "agent" remain in full force and effect pending the
outcome of this rulemaking proceeding.
11 See McConnell, 540 U.S. at 161 (holding that "party officials
may also solicit soft money in their unofficial capacities").